Mediate First! – HMG on Mediacorp TV Series “Missing Peace”

January 24, 2014

I had the pleasure of being interviewed and featured in a TV series entitled “Missing Peace” (Episode 8). This Channel 5 docudrama series dramatises real life disputes that arise in different areas of life and invites mediation professionals to give their input on how to resolve disputes effectively and amicably.
Last night’s episode featured the infamous Everitt Road neighbourhood dispute in Singapore. Though I was not the mediator for this case (I mediate mostly commercial and family cases), what I said in the one minute clip about mediating as early as possible is relevant to most disputes. You can watch the entire episode on XinMSN Catchup TV. I have also transcribed (with edits) the selected soundbites the producers chose to use in this episode.
“Mediation happens best at the earliest stage of dispute. Many times, disputes happen because there could be structural conflicts such as the place you live in or from issues arising from miscommunication. However, many disputes escalate into a RELATIONSHIP dispute. If at the onset, a mediator is able to come in, we are able to minimise the damage before a dispute escalates. So we generally advise parties to to go into mediation as early as possible, to maximise the success of mediation.”
Let me qualify by saying that you don’t necessarily have to seek a mediator’s help at the first sign of disagreement. (In disputes where the law is broken and the allegations are criminal in nature, the proper authorities have to be notified). Proper negotiations should definitely be attempted by all parties before seeking third party intervention. But the moment negotiations break down, the question arises if you should immediately arm yourselves with lawyers? And seek “justice” in court?
Compare this to seeking medical help when you have an ailment. It makes sense for someone without troubled medical history to to first consult a General Practitioner for examination, diagnosis and non-surgical treatments. Only when all else fails, would he be advised to see a specialist, or in an emergency situation to proceed to the Accident and Emergency Department.
Similarly, when one is involved in a failed negotiations where much is at stake, it makes sense to seek a neutral person to facilitate the negotiations, before attempting to arbitrate or litigate. So why do people go into litigation so readily? Why do they NOT mediate first? That is an interesting question that we as conflict resolution providers often wrestle with. I put forth 3 possible reasons for that.
1) Psychological Reasons – When people encounter a certain level of worry and anxiety, the instinct for survival kicks in: fight or flight. The “certainty” that wrong has been done to oneself can cause someone to take up arms. In civil society, this fight syndrome is to arm oneself with a legal advocate to seek redress or to seek vengeance. What many do not realise is that once you commit to litigation, the dispute usually takes on a life on its own and in many situations escalates, costing the disputants much time, money and much more anxiety.
2. Structural Reasons – Most contracts are drafted by lawyers and it seems to make sense for the same lawyers to protect the terms of agreements in a court of law. Contracts are written to appear as if they are full proof, but in reality contractual clauses are open to interpretation. Some more far-sighted companies have put in an arbitration clause into contracts, so that disputes can be settled privately by an arbitrator (private judge). But many in Singapore have not opted to put in a mediation clause in their contracts.
3. Credibility of Profession – Mediation has long been painted as the poor neglected cousin of litigation / arbitration and there are those who consider mediation akin to compromise, or an avenue that it sought by the perceived weaker party. Anecdotal evidence also suggests that while many do not want to go to court, they see little alternatives that appear credible in protecting their interests.
If these reasons are somewhat accurate, I would like to put forth a few points of consideration for the reader:
– If you are angered, anxious and burdened by a dispute, remember that a mediator can assist you to separate the people from the problem. Mediators also provide a neutral and external pair of eyes to help ascertain the exact cause of the conflict. Is it a data conflict or a structural conflict? Is the conflict over different value systems or perceived incompatible interests? Has there been a history of troubled relationship causing a breakdown in trust and communication? If at the earliest opportunity, you choose to mediate first, you will prevent further deterioration in relationship and that in itself would go a long way to DE-escalate an already troubled negotiation.
– There are countries where the culture of mediation has been better established. I have mediated a local commercial dispute where parties only came into mediation because one of the sleeping partners was of a country of origin that made popular the inclusion of mediation clauses in all commercial contracts. That partner had the foresight to include the mediation clause in this particular contract. At the mediation, lawyers put forth their arguments based on clauses embedded in the shareholders contract, sparring on points of disagreement. However, when mediators invited the parties to give their sides of the story, it seemed that earlier negotiations broke down because of a breakdown in trust and communication. They were not at all interested in the contractual clauses unless they had to fight their case in court. The moment I facilitated their discussion to overcome the distrust, the parties were ready to negotiate constructively again, this time with the help of a neutral party they could both trust. What would have been a costly and lengthy dispute in the supreme court was settled successfully after half a day. I attribute this success to the foresight of that sleeping partner to put in a mediation clause in the contract.
– The credibility of mediation is hampered by the lack of professional bodies to train, accredit, regulate and provide accountability. Many consider themselves to be mediators and have marketed their services as such, without proper training nor accreditation. Let me assure the reader that there is sufficient body of academic and research in this field; sufficient technique, rigour and ethics involved in the practise of professional mediation; and established mediation centres that accredit worthy individuals who have been found fitting to assist others to resolve their disputes amicably.
– If and when you do decide to mediate, do take some time to do some research on not so much their reputation as leaders in society, but their reputation and professional accreditation in the field of mediation. Consult them personally to establish if this mediator is someone who is even-handed and trustworthy. A mediation professional is committed to facilitate an efficient, effective and long-lasting resolution. Don’t settle for any less.
In a nutshell:
1. Mediate First
2. Insist on a Mediation Clause in all your contracts
3. Take care to select a Mediation Professional
Linda Heng